R. v. McNeil

R. v. McNeil
Collection
Supreme Court Judgments
Date
2009-01-16
Neutral citation
2009 SCC 3
Report
[2009] 1 SCR 66
Case number
31852
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 31852
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66
Date: 20090116
Docket: 31852
Between:
Attorney General of Ontario, 3rd Party Record Holder
Appellant
and
Lawrence McNeil, Her Majesty the Queen and Chief
of Barrie Police Service, 3rd Party Record Holder
Respondents
‑ and ‑
Attorney General of Alberta, Matthew Marshall,
Police Association of Ontario and Criminal
Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 61)
Charron J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ. concurring)
* Bastarache J. took no part in the judgment.
______________________________
R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66
Attorney General of Ontario, 3rd Party Record Holder Appellant
v.
Lawrence McNeil, Her Majesty The Queen and Chief
of Barrie Police Service, 3rd Party Record Holder Respondents
and
Attorney General of Alberta, Matthew Marshall,
Police Association of Ontario and Criminal
Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. McNeil
Neutral citation: 2009 SCC 3.
File No.: 31852.
2008: March 19; 2009: January 16.
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Production — Crown’s duty to disclose — Corollary police obligation to disclose to Crown — Accused charged with drug‑related offences — Crown’s main police witness involved in drug‑related misconduct leading to disciplinary proceedings and criminal charges — Accused sought production of arresting officer’s police disciplinary records and criminal investigation files — Whether common law production regime for third party records applicable only in cases where these records attract reasonable expectation of privacy — Whether criminal investigation files relating to third party accused attract reasonable expectation of privacy — Whether police records relating to findings of misconduct by officer involved in investigation against accused fall within scope of first party disclosure package from police to Crown.
The accused was convicted on multiple drug charges. The arresting officer was the Crown’s main witness. After his conviction but before sentencing, the accused learned that the arresting officer was engaged in drug‑related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act and to criminal charges. In a preliminary motion before the Court of Appeal, the accused sought production of all documents related to the arresting officer’s misconduct, claiming that he required this material to assist him in preparing an application to introduce fresh evidence on his appeal from conviction. The Court of Appeal held that an O’Connor‑type procedure is only required in cases where third party records attract a reasonable expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal investigation files. Subject to appropriate redactions and the resolution of any privilege claims, the Court of Appeal ordered the third parties to produce the criminal investigation files in their possession related to the charges against the arresting officer to the federal Crown prosecuting the accused’s case. Subsequently, the arresting officer pleaded guilty to one of the criminal charges brought against him. Evidence of the officer’s conviction was admitted on the accused’s appeal, and the accused’s convictions were set aside, following which the Crown undertook not to re‑prosecute him. The production issue in this case was rendered moot and the accused withdrew his participation in this appeal. The Court appointed an amicus curiae and heard this appeal despite its mootness.
Held: The appeal is allowed and the order in the court below is set aside. The application having become moot, the Court makes no further order.
The Crown’s obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. Under Stinchcombe, the Crown’s first party disclosure obligation extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown. A question then arises as to whether the “Crown” for disclosure purposes encompasses other state authorities. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process. The necessary corollary to the Crown’s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. [14‑15] [22-23]
Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production. The O’Connor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases where third party records attract a reasonable expectation of privacy. To limit the applicability of the O’Connor regime to those cases where a third party has an expectation of privacy in the targeted documents would raise some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches. [11] [15]
The first step in the O’Connor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case. [28] [34] [35]
In most cases, a useful starting point for courts in balancing the competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against the accused. Once a court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. The accused’s interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning third party accused. [20] [39] [42]
That is not to say that residual privacy interests in the contents of criminal investigation files, police disciplinary records or any other third party records should be disregarded. The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more. To ensure that only relevant material is produced and that no unwarranted invasion of privacy interests occurs, the court may find it necessary to make a production order subject to redactions or other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accused’s full answer and defence or prosecution of an appeal. [43‑44] [46]
Cases Cited
Referred to: R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Stinchcombe, [1995] 1 S.C.R. 754; R. v. Gingras (1992), 120 A.R. 300; R. v. Jack (1992), 70 C.C.C. (3d) 67; R. v. T. (L.A.) (1993), 14 O.R. (3d) 378; R. v. Gagné (1998), 131 C.C.C. (3d) 444; Driskell v. Dangerfield, 2008 MBCA 60, [2008] 6 W.W.R. 615; R. v. MacPherson (1991), 105 N.S.R. (2d) 123; R. v. Oliver (1995), 143 N.S.R. (2d) 134; R. v. Campbell, [1992] N.S.J. No. 702 (QL); R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Durette, [1994] 1 S.C.R. 469; R. v. Clifford (2002), 163 C.C.C. (3d) 3; P. (D.) v. Wagg (2004), 239 D.L.R. (4th) 501; R. v. Arsenault (1994), 153 N.B.R. (2d) 81; R. v. Ahluwalia (2000), 138 O.A.C. 154.
Statutes and Regulations Cited
Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A‑1.1, s. 22.
Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A‑2.1, s. 28.
Canadian Charter of Rights and Freedoms, s. 7 .
Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760, s. 7(2).
Code of Professional Conduct Regulation, B.C. Reg. 205/98, s. 5(e).
Code of Professional Conduct Regulation — Police Act, N.B. Reg. 2007‑81, s. 36(1)(d)(iii).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 278.1 to 278.91 , 278.3(4) , 698(1) , 700(1) .
Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, s. 20.
Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 15.
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14.
Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 1988, c. F‑15.01, s. 18.
Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50, s. 25.
Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 15.
Freedom of Information and Protection of Privacy Act, S.S. 1990‑91, c. F‑22.01, s. 15.
General, O. Reg. 123/98 (Police Services Act), Sch., s. 2(1)(c)(vi).
Police Service Regulation, Alta. Reg. 356/90, s. 5(2)(h)(vii).
Police Services Act, R.S.O. 1990, c. P.15, s. 42(1)(e).
Privacy Act, R.S.C. 1985, c. P‑21, s. 22 .
Right to Information Act, S.N.B. 1978, c. R‑10.3, s. 6(a), (f).
Authors Cited
Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto: The Committee, 1993.
Ontario. Review and Recommendations Concerning Various Aspects of Police Misconduct, vol. I. Toronto: Toronto Police Service, 2003 (online: http://www.torontopolice.on.ca/publications/files/reports/ferguson1.pdf).
Paciocco, David M. “Filling the Seam between Stinchcombe and O’Connor: The ‘McNeil’ Disclosure Application” (2007), 53 Crim. L.Q. 161.
APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Simmons and Blair JJ.A.) (2006), 218 O.A.C. 1, 215 C.C.C. (3d) 22, 43 C.R. (6th) 370, [2006] O.J. No. 4746 (QL), 2006 CarswellOnt 7557, allowing a motion for production of certain documents. Appeal allowed.
Christine Bartlett‑Hughes and Elise Nakelsky, for the appellant.
James C. Martin and Rick Visca, for the respondent Her Majesty the Queen.
H. Reginald Watson and Jill Sexsmith, for the respondent the Chief of Barrie Police Service, 3rd Party Record Holder.
James A. Bowron, for the intervener the Attorney General of Alberta.
Gary R. Clewley and Henry S. Brown, Q.C., for the intervener Matthew Marshall.
Ian J. Roland and Danny Kastner, for the intervener the Police Association of Ontario.
David M. Porter and Christopher A. Wayland, for the intervener the Criminal Lawyers’ Association (Ontario).
Marie Henein and Jordan Glick, for the amicus curiae.
The judgment of the Court was delivered by
Charron J. —
1. Introduction
[1] This appeal concerns an accused’s motion for production of police disciplinary records and criminal investigation files relating to the Crown’s main police witness in the case against him. The respondent Lawrence McNeil brought his motion in accordance with the procedure set out in R. v. O’Connor, [1995] 4 S.C.R. 411, for the production of third party records. The proceedings against McNeil have since been discontinued, McNeil has withdrawn his participation in this appeal, and the production issue is now moot.
[2] Issues concerning the production of police disciplinary records and criminal investigation files relating to third party accused occur frequently and, because the proceedings in which these questions generally arise are interlocutory in nature, production orders are often evasive of appellate review. In addition, the third parties in the present case have a subsisting interest in clarifying some of the uncertainties arising from the decision below. For these reasons, the Court appointed an amicus curiae and heard this appeal despite its mootness.
[3] The question of whether production of the particular documents at issue in the court below should or should not have been ordered is no longer before us. The evidence and prior proceedings in the current case will therefore be reviewed simply to provide the necessary background for discussion of the issues canvassed by the parties on this appeal.
2. Background
[4] McNeil was arrested by Constable Rodney Hackett and other members of the Barrie Police Service in respect of an alleged drug transaction. He was subsequently prosecuted by the federal Crown and convicted on multiple drug charges, including possession of marijuana and cocaine for the purpose of trafficking. Hackett was the Crown’s main witness in the case against McNeil. He was the only witness who testified to the reasonable grounds supporting McNeil’s arrest. In addition, the trial judge’s ultimate finding that McNeil’s admitted possession of marijuana and cocaine was for the purpose of trafficking turned on Hackett’s credibility.
[5] After his conviction but before sentencing, McNeil learned that Hackett was engaged in drug‑related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act, R.S.O. 1990, c. P.15, and to criminal charges. Both proceedings against Hackett were ongoing at the time. Following an aborted application to reopen his trial to introduce evidence about Hackett’s misconduct, McNeil chose to proceed to sentence and appeal his conviction instead.
[6] In a preliminary motion before the Court of Appeal for Ontario, McNeil sought production of all documents related to Hackett’s misconduct, claiming that he required this material to assist him in preparing an application to introduce fresh evidence on his appeal from conviction. The police disciplinary and criminal investigation documents at issue were intermingled, and were in the possession of both the Barrie Police Service and the provincial Crown prosecuting the criminal charges against Hackett. Both entities resisted production, and the federal Crown supported their opposition to the motion.
[7] In O’Connor, this Court set out a two-part test for production of third party records. First, the applicant must demonstrate that the information contained in the records is likely relevant. In the appellate context, it was therefore incumbent on McNeil to show that the targeted documents were likely relevant to his proposed application to introduce fresh evidence on his appeal from conviction. Second, if the threshold test of likely relevance is met, the court may order production of the records for its inspection. With the targeted documents before it, the court weighs “the positive and negative consequences of production, with a view to determining whether, and to what extent, production should be ordered” (O’Connor, at para. 137). The second part of the O’Connor test essentially requires a court to conduct a balancing of the third party’s privacy interest in the targeted documents, if any, and the accused’s interest in making full answer and defence.
[8] In the present case, the Court of Appeal found that some of the targeted records, including both disciplinary police records and criminal investigation files, met the requisite relevancy threshold, satisfying the first part of the O’Connor test. Rather than proceeding to the second part of the test, however, the court held that an “O’Connor-type procedure” is only required in cases where third party records attract a reasonable expectation of privacy ((2006), 218 O.A.C. 1). The court drew a distinction between criminal investigation files and police disciplinary records, and concluded that no expectation of privacy existed in respect of the former. Accordingly, subject to appropriate redactions and the resolution of any privilege claims, the court ordered the third parties to produce the criminal investigation files in their possession related to the charges against Hackett to the federal Crown prosecuting McNeil’s case. The court directed the prosecuting Crown in McNeil’s case to determine whether the documents were in fact relevant to McNeil’s appeal and, if so, to make disclosure to the accused. As for the police disciplinary records, the court noted the conflicting jurisprudence on whether such records are subject to a reasonable expectation of privacy and invited counsel to make further submissions on this issue. The balance of the motion was adjourned accordingly.
[9] The Attorney General of Ontario, as third party record holder, was granted leave to appeal to this Court and the production order was stayed pending disposition of the appeal. Subsequently, Hackett pleaded guilty to one of the criminal charges brought against him. Evidence of Hackett’s conviction was admitted on McNeil’s appeal before the Court of Appeal for Ontario, and his convictions were set aside, following which the Crown undertook not to re-prosecute him. McNeil then withdrew his participation in the appeal. This Court acceded to the remaining parties’ request to proceed with the appeal despite its mootness and appointed an amicus curiae to maintain a proper adversarial context.
3. Overview of the Issues on Appeal
[10] As stated earlier, the third party record holders in this case seek clarification in respect of some of the uncertainties arising from the decision below. The issues canvassed before this Court are the following.
[11] First, by limiting the applicability of the O’Connor production regime to those cases where a third party has an expectation of privacy in the targeted documents, the decision under appeal raises some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches. As I will explain, the procedure set out in O’Connor provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown. Whether or not the targeted record is subject to a reasonable expectation of privacy is one of the questions that must be determined at the hearing of an O’Connor application. For that pragmatic reason alone, the operation of the common law production regime cannot be premised on the existence of a reasonable expectation of privacy.
[12] Second, to the extent that the decision in the court below suggests that there can be no expectation of privacy in the contents of a criminal investigation file, it is in error. As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668: “Privacy is not an all or nothing right. It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears” (para. 108). This principle holds equally in respect of criminal investigation files relating to third party accused that are not in the possession or control of the prosecuting Crown. There can be no assumption that criminal investigation files relating to third party accused persons do not attract an expectation of privacy absent consideration of their particular contents and other relevant factors. The existence of a reasonable expectation of privacy and its impact, if any, on a third party’s obligation to produce is always a contextual, fact-based inquiry. Likewise, no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to their contents.
[13] Third, to the extent that the operative terms of the production order below may suggest that records in possession of one Crown entity are deemed to be in the possession of another, this interpretation should be discarded. The notion that all state authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support in law and, moreover, is unworkable in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under the O’Connor production regime. As I will explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and the defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused.
[14] In addition to clarifying these three uncertainties, this case provides an appropriate context within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the investigation under R. v. Stinchcombe, [1991] 3 S.C.R. 326, and to consider the extent to which relevant police disciplinary records and third party criminal investigation files should form part of this “first party” disclosure package. The Crown’s obligation to disclose all relevant information in its possession to an accused is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms . The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown.
[15] As I will explain, records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the “first party” disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production.
[16] I will first review the respective obligations of the Crown and the police to disclose the fruits of the investigation against the accused.
4. The Stinchcombe Duty to Disclose the Fruits of the Investigation
[17] The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first party production context includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence (pp. 343-44). The Crown’s obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal.
[18] While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.
[19] As this Court confirmed in Mills, the Crown’s obligation under Stinchcombe to disclose the fruits of the investigation does not signify that no residual privacy interest can exist in the contents of the Crown’s file. It should come as no surprise that any number of persons and entities may have a residual privacy interest in material gathered in the course of a criminal investigation. Criminal investigative files may contain highly sensitive material including: outlines of unproven allegations; statements of complainants or witnesses — at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc. The privacy legislation of all 10 provinces addresses the disclosure of information contained in law enforcement files. See Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14; Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, s. 22; Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s. 15; Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 1988, c. F-15.01, s. 18; Right to Information Act, S.N.B. 1978, c. R-10.3, ss. 6(a) and 6(f); An Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1, s. 28; The Freedom of Information and Protection of Privacy Act, S.M. 1997, c. 50, s. 25; The Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 15; Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 20; Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s. 15. See also the federal Privacy Act, R.S.C. 1985, c. P‑21, s. 22 .
[20] Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.
[21] Although the common law regime of disclosure under Stinchcombe generally strikes the appropriate balance between the accused’s right to make full answer and defence and the residual privacy interests of other persons in the fruits of the investigation, it is not the only regime that meets constitutional standards. As this Court concluded in Mills, it was open to Parliament to enact, as it did, a statutory regime for the disclosure of records containing personal information of complainants and witnesses in proceedings for sexual offences under ss. 278.1 to 278.91 of the Criminal Code, R.S.C. 1985, c. C-46 (commonly referred to as the “Mills regime”). Absent an express waiver from the complainant or witness to whom the record relates, production of all records falling within the Mills regime, whether in the possession or control of a third person or of the prosecutor in the proceedings, can only be made on application to the court and in accordance with the balancing test set out in the Code provisions. This statutory regime therefore constitutes an exception to the common law regime of Crown disclosure under Stinchcombe. As we shall see, the Mills regime is also different from the common law regime for production of third party records under O’Connor. It is nonetheless constitutional (Mills, at para. 59).
[22] The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown. The law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, [1995] 1 S.C.R. 754. A question then arises as to whether the “Crown”, for disclosure purposes, encompasses other state authorities. The notion that all state authorities amount to a single “Crown” entity for the purposes of disclosure and production must be quickly rejected. It finds no support in law and, given our multi‑tiered system of governance and the realities of Canada’s geography, is unworkable in practice. As aptly explained in R. v. Gingras (1992), 120 A.R. 300 (C.A.), at para. 14:
If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutor would have to inquire of every department of the Provincial Government and every department of the Federal Government. He would have to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carry out 1% of that task. It would take many years to bring every case to trial if that were required.
Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the “fruits of the investigation”.
[23] Under our Canadian system of law enforcement, the general duty to investigate crime falls on the police, not the Crown. The fruits of the investigation against an accused person, therefore, will generally have been gathered, and any resulting criminal charge laid, by the police. While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in prosecutions: see, for example, s. 42(1)(e) of the Ontario Police Services Act. Of particular relevance here is the police’s duty to participate in the disclosure process. The means by which the Crown comes to be in possession of the fruits of the investigation lies in the corollary duty of police investigators to disclose to the Crown all relevant material in their possession. The police’s obligation to disclose all material pertaining to the investigation of an accused to the prosecuting Crown was recognized long before Stinchcombe. The state of the law was well summed up by the Honourable G. Arthur Martin, Q.C., in his Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Report”), at pp. 167-68:
It is well settled and accepted by all, including the police, that the police, although operating independently of Crown counsel, have a duty to disclose to Crown counsel all relevant information uncovered during the investigation of a crime, including information which assists the accused. . . . As one commentator has observed, “the duty of the police to disclose relevant information about a case, to the Crown, is a duty that existed before [Stinchcombe, supra]”.
[24] The corollary duty of the police to disclose to the Crown the fruits of the investigation is now well recognized in the appellate jurisprudence. See R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 94; R. v. T. (L.A.) (1993), 14 O.R. (3d) 378 (C.A.), at p. 382; R. v. Gagné (1998), 131 C.C.C. (3d) 444 (Que. C.A.), at p. 455; and Driskell v. Dangerfield, 2008 MBCA 60, [2008] 6 W.W.R. 615, at para. 17. It is also widely acknowledged that the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown. See R. v. MacPherson (1991), 105 N.S.R. (2d) 123 (S.C.), at paras. 37-38; R. v. Oliver (1995), 143 N.S.R. (2d) 134 (S.C.), at para. 36; R. v. Campbell, [1992] N.S.J. No. 702 (QL) (Prov. Ct.), at paras. 16-17.
[25] Even though, in this narrow sense, the police and the Crown may be viewed as one entity for disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law. Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O’Connor application. This is unsurprising because information about third party accused or police misconduct is not likely to make its way into the Crown’s Stinchcombe disclosure package unless such information is in some way related to the accused’s case. I will come back to this point later in discussing the circumstances in which information about third party misconduct should properly form part of the police disclosure package to the Crown. First, I will review the principles governing the production of third party records under the O’Connor regime.
5. The O’Connor Regime for Production of Third Party Records
[26] In O’Connor, this Court was concerned with the manner in which the accused, who was charged with multiple sexual offences, could obtain production of the therapeutic records of the complainants from third party custodians. O’Connor has been overtaken by Parliament’s subsequent enactment of the Mills regime contained in ss. 278.1 to 278.91 of the Criminal Code for the disclosure of records containing personal information of complainants and witnesses in sexual assault proceedings. In respect of any other criminal proceeding, however, the O’Connor application provides the accused with a mechanism for accessing third party records that fall beyond the reach of the Stinchcombe first party disclosure regime.
[27] Stated briefly, the procedure to be followed on an O’Connor application is the following:
(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials.
(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production.
(3) The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing.
(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O’Connor process.
(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O’Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court’s inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.
The question of privilege is beyond the scope of this appeal. However, I will elaborate on each stage of the O’Connor test for production of third party records in turn.
5.1 First Stage: Screening for Likely Relevance
5.1.1 Burden Is on the Applicant
[28] The first step in any contested application for production of non-privileged documents in the possession of a third party is for the person seeking production — in this case the accused — to satisfy the court that the documents are likely relevant to the proceedings. This threshold burden simply reflects the fact that the context in which third party records are sought is different from the context of first party disclosure. We have already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in their possession under Stinchcombe is premised on the assumptions that the information is relevant and that it will likely comprise the case against the accused. No such assumptions can be made in respect of documents in the hands of a third party who is a stranger to the litigation. The applicant must therefore justify to the court the use of state power to compel their production — hence the initial onus on the person seeking production to show “likely relevance”. In addition, it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in “fishing expeditions” for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function.
5.1.2 Burden on Applicant Is Significant but not Onerous
[29] It is important to repeat here, as this Court emphasized in O’Connor, that while the likely relevance threshold is “a significant burden, it should not be interpreted as an onerous burden upon the accused” (para. 24). On the one hand, the likely relevance threshold is “significant” because the court must play a meaningful role in screening applications “to prevent the defence from engaging in ‘speculative,